§3. Assuming then that we are to aim at making laws as definite and as cognoscible as possible, let us consider how far this result may be better attained by express legislation, or by continuing the process of development through judicial decisions, which has had so large a share in determining legal rules in earlier times. In the first place, it is clear that, so far as definite and palpable changes in law are demanded, in consequence either of changes in social conditions or of increased insight into social needs, it becomes more and more necessary, as the development of law goes on, to obtain these by express legislation; since, as we saw, the process of judicial law-making tends to be confined within continually narrowing limits in virtue of the very principle that has rendered it possible---the principle that decided cases are binding judicial precedents.
Here it may perhaps be said that such changes in law as may be needed at the present stage of social development can hardly relate to what I have called the individualistic minimum; that the fundamental rights of personal security, property, contract, etc., must have been long since determined in any civilised State; and that so far as exacter definition may be required on doubtful points-as, e.g., whether it is murder to kill and eat a comrade on the high seas to avoid starvation---this definition is still best given by the judges. And no doubt modern legislation is not mainly concerned with the substantive law governing these fundamental relations of individuals, but either with the organisation of the governmental machinery for securing them, or with interference that goes beyond the individualistic minimum. Still there are questions of real, though minor importance, even within the individualistic minimum, with which legislation here and now has to deal: and it may be worth while to give a few examples of these from recent English legislation.
To begin with personal security---the general principle is clear, that a man should be protected from injury wilfully or carelessly caused by other men; but in applying the principle, new precautions are continually needed against new dangers, which changes in social relations or industrial conditions have rendered more formidable: and it is a complicated and delicate matter to devise just the right precautions, owing to the general risk that, in protecting the security of one individual, we may too much hamper the freedom of others to perform useful social work. Thus, e.g., to ward off perils from explosive substances it was till lately thought sufficient to regulate their manufacture and carriage, and their use under special circumstances, as in mines: but some years ago, when the conjunction of revolutionaries and dynamite intensified this peril in England, the governmental protection was increased, partly by severer penalties on proved co-operation in criminal -use of explosives, but partly also by throwing on the possessor of the dangerous substance under suspicious circumstances the burden of proving that he had it for a lawful object.
So, again, it requires much care to secure the reputation of individuals from improper attacks without interfering with the useful function of newspapers in spreading information and criticism: and thus it was found that a more exact determination of the law of newspaper libel was needed some years ago: by which newspapers were made free of any responsibility for reporting speeches at public meetings, provided they inserted any contradictions or corrections sent them by the speakers.
To turn to property: the main utilitarian principle on which the institution of private property rests is the expediency of encouraging productive labour (and due care for what has been produced) by securing the product to the labourer: but in the case of intellectual products, such as industrial inventions, it is impossible to do this without some risk of interfering with the inventive enterprise of other men: and it needs a very careful regulation of the conditions under which inventions are protected by patent, in order to give adequate encouragement to the inventor protected, while hampering other inventors as little as possible. Hence it is not surprising that changes in our Patent Law should have been recently required, and that wider changes should still be urged. And the same remark applies to other immaterial products of labour which cannot be appropriated as material things are.
As regards contract: I have already noticed the important limitation of contractual obligations imposed by the law of Bankruptcy, according to which debts of money cease to be legally due from persons who have at some previous time proved their inability to pay and given up their property for division among their creditors. This limitation of the effects of breach of contract is on the whole expedient, in order to restore to insolvent persons adequate inducements to useful industry but it involves great risk of encouraging reckless and improper dealing with borrowed resources; and the problem of reducing this risk to a minimum has been found very difficult. The British Parliament has legislated on the subject repeatedly and recently, but it cannot be confidently affirmed that fresh legislation will not soon be needed.[Back to:]